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Re Disputed Returns for Tambul [1982] PGNC 26; N390 (19 October 1982)

Unreported National Court Decisions

N390

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]
IN THE MATTER OF THE ORGANIC LAW ON THE NATIONAL ELECTIONS AND IN THE MATTER OF DISPUTED RETURNS FOR THE TAMBUL-NEBILYER OPEN ELECTORATE
AND
IN THE MATTER OF KAGUEL KOROKA
AND
IN THE MATTER OF THOMAS NEGINTS
RESPONDENT

Mount Hagen

Woods AJ
11-13 October 1982
15-16 October 1982
18-19 October 1982

DECISIONS AND REASONS

WOODS AJ: This ietition by Mr KAGUELAGUEL KOROKA who was a candidate at the 1982 general elections for the electorate of TAMBUL-NEBILYER OPEN. The candidate elected was Mr Thomas Negints. There were seven canes, Thomas Negints scored 6red 6852 votes, the petitioner Kaguel Koroka was next and scored 5226 votes, the margin being 1626 votes.

The petitioner made a number of allegations but they can be summarised under 2 headings. Firstly, there were allegations that the successful candidate Thomas Negints, had committed a number of acts of bribery and/or undue influence which briefly comprised of authorising or encouraging the supply by his supporters of beer, food, accommodation and transport to the presiding officer and polling officials of team number 3, and authorising and encouraging the making of threatening remarks by a supporter to voters.

Secondly, there were allegations of malpractices by Electoral Officials and irregularities amounting to illegal practices which briefly comprised of making predictions about the result of the election, omitting to attend the polling place at Kilgu, not securing ballot boxes properly, mixing with and talking to the respondent or his supporters, not accounting properly for ballot boxes and for discrepancies in the tally sheets.

The law is quite clear in s.215 of the Organic Law on National Elections.

Section 215(1) ҈ If the Nal Cour Court find finds that a candidate has committed or has attempted to commit bribery or undue influence, his election, if he is a successful candidate, shall be red v/p>

(a) ; on the the grounground ound of d of an illegal practice committed by a person other than the candidate and without the candidate’s knowledge or authority; or

(b) on the ground of angilleral practice other than bribery or undue influence or attempted bribery or undue influence,

unless the Court is satisfied that the reof thctionlikelbe afd and that it is juis just thst that that the cane candidatdidate should be declared not to be duly elected or that the election should be declared void.

And s.218 plainly envisages that an election may be avoided on accounts of an error or omission by an officer when it says:

Section 218(1) &ـʔ< S60; Subject to sub-s.an e an election shall not be avoided on account of a delay in the declaration of nominations, the polling, the declaration of the poll or the reof tht or count of thef the abse absence of, an error of, or an omission bion by, an officer which did not affect the results of the election.

Further, under s.212 an election can be declared void on the ground that illegal practices were committed in connection with the election.

To summarise the above provisions. If a candidate has committed or has attempted to commit bribery or undue influence his election shall be declared void. If a person other than the candidate has committed or has attempted to commit bribery or undue influence with the active support or authority or active encouragement of the successful candidate then the election shall be declared void.

If anyone including the candidate commits an illegal practice other than bribery or undue influence or there is a case of an error or ommission by an officer, the National Court must be satisfied that the result of the election was likely to be affected and it is just that the candidate should be declared not to be duly elected or that the election should be declared void.

Undue influence for the purposes of this law includes the meaning of that offence as constituted in s.102 of the Criminal Code, chapter 262 - see Frost C.J. in In Re Menyamya Open ElectorateN390.html#_edn972" title="">[cmlxxii]¹. Bribery is defined in s.103 of the Criminal Code. Illegal practices are set out in s.179 of the Organic Law on National Elections and also includes those practices in ss.99 to 116 of the Criminal Code. See In Re Koroba-Lake Kopiago Open Parliamentary ElectionN390.html#_edn973" title="">[cmlxxiii]².

The onus of proof in this matter is on the petitioner and he must prove his allegations to my entire satisfaction. This is not as high a standard as the criminal standard of proof beyond all reasonable doubt, it is a standard of proof less than that. Frost C.J. in In Re Menyamya Open Parliamentary Election 1977 P.N.G.L.R. @ 301 referred to a statement that “a Judge before defeating an election should be very sure, he ought to have a reasonable assurance that the ground was really made out”, and he went onto say that “before I uphold the petition, I am of the opinion that the ground must be proved to my entire satisfaction”. I adopt this statement of the standard of proof.

Counsel for the petitioner raised a preliminary point in his submission that as Mr Peter Num was appointed the Assistant Returning Officer for Mount Hagen, see Gazette 37 of 17th March 1982 folio 166 and there was no later Gazette for his appointment to Tambul-Nebilyer, all his actions as a presiding officer for team 3 in Tambul-Nebilyer and as the Assistant Returning Officer for Tambul-Nebilyer are null and void and thus the election should be declared null and void.

Whilst I find this rather confusing and shows a disregard by the Electoral Commissioner of the proper administrative provisions of the Organic Law on National Elections this is not an error or omission on the part of the Electoral Commissioner which can void an election. Anyway, Peter Num was separately appointed as the presiding officer for team 3 Tambul-Nebilyer electorate which may not necessarily have anything to do with his appointment as an Assistant Returning Officer. Further the petitioner did not raise this point in his petition as a ground to avoid the election.

Counsel for the petitioner also raised the point in his submissions that the Returning Officer for Tambul-Nebilyer Mr George Lassie did not properly certify the tally sheet at the time he declared the result of the election. I am not satisfied that the failure to properly certify the tally sheet is an omission which can avoid the election however I must make the point that his failure to so certify the tally sheet and failure to obtain the certification of the scrutineers is a clumsy disregard of procedures which are in themselves designed to ensure that all parties and the voters can be satisfied that matters have proceeded in an orderly and regular manner. I must add here that the tally sheets are in themselves a bit confusing and should be redesigned to clearly indicate to polling officials how they are supposed to be used. They appear to be preferential voting tally sheets!

I will now deal with the allegations as follows:

ACCOMMODATION AND TRAVEL FOR POLLING OFFICIALS.

There is no dispute on the evidence that the polling officials used private vehicles for travel to and from certain polling places and were accommodated privately. However there is no real evidence before me that such accommodation and travel was supplied with the knowledge, encouragement and with the authorisation of Thomas Negints. There is no evidence that Mel Maiap or Anis Top the suppliers of the transport and accommodation were on any campaign committee for Thomas Negints. Because the Government did not supply sufficient vehicles for the polling teams, they sometimes had to obtain private transport as best they could.

Further, I am not satisfied that the supply of accommodation or travel was an illegal practice committed by any person with the intention of influencing the result of the election or which in any way did influence the result of the election.

BEER

Polling officials were seen to obtain beer during the polling period, however there is no evidence that this beer was a gift by anybody. The petitioners witnesses only thought the beer may have been given, they were not sure who paid for the beer. The officials said they themselves paid for the beer.

STATEMENT BY EX-COUNCILLOR, KAMA AT DUMAGONA.

It was alleged that Kama said to a crowd of people at Dumagona on polling day “I don’t want anyone within the area of the four councillors to split any vote. If you people disobey me and give your votes to another candidate or to Kaguel Koroka, we will settle our matter traditionally at home”. Paul Wak who made the allegation was at the time with the scrutineers apparently in the polling area. He said there were a lot of people around and other people made speeches.

Kama himself denies having said the above words but does admit to telling the people that ‘for 20 years the member for Tambul-Nebilyer was always up at Tambul area. The election is between us and whoever wins it can be up there or it can be down there’. I do not find that these words admitted to by Kama are threatening and thereby an undue influence.

I am not satisfied that Thomas Negints was there in the vicinity when whatever Kama said was said. Also there is no evidence that whatever statement was made was with the encouragement or authorisation of the respondent, Thomas Negints.

I refer again to the principles laid down by Frost, C.J. in In Re Menyamya Open Parliamentary Election, that the ground of undue influence must be proved to my entire satisfaction. This burden falls short of the criminal standard.

I have sufficient doubts as to whether the threatening statement was made by Kama as Paul Wak was the only witness to what Kama said, the statement given in evidence is different than the statement alleged in the petition, there was a crowd of people, Kama is a relatively short man, and as the only evidence on when it was made was in the afternoon I have no idea how many voters could have been influenced.

I am therefore not really satisfied that it was undue influence which could have sufficiently affected the results and that the election should therefore be declared void.

With respect to the alleged threat to Taim Unda there was insufficient evidence for me to give it any consideration.

THE PRESIDING OFFICER OF TEAM 3 PREDICTING THE RESULT AND TALKING TO THE RESPONDENT.

Certain witnesses assert that Peter Num who was the presiding officer for team 3 made a prediction that the respondent was going to win the election and also he was seen at various times talking to the respondent Thomas Negints. Polling officials should realise that all their actions during an election should be above all suspicion and the Electoral Commissioner should impress this very strongly on officials. However, whilst certain actions by Peter Num may have suggested a partiality to a candidate, I am quite satisfied that the prediction by Peter Num was an unfortunate but in the end harmless incident and being seen talking to the respondent has been satisfactorily explained such that there is no error or omission or even illegal practice which could have affected or did affect the result of the election.

THE PRESIDING OFFICER OF TEAM 3 WAS ABSENT FROM OR LATE AT CERTAIN POLLING PLACES.

There is provision for the presiding officer to delegate his duties to another member of his polling team and certain of his absences were explained. There is no evidence that these absences or omissions affected the results of the election.

ABSENCE OF SCRUTINEERS AT AROWA.

Quite aside from the fact that Arowa does not appear on the list of gazetted polling places and whilst the gazetted polling schedule seemed to have been varied by the polling officials, there is no evidence that people were not told in advance of the next place at which polling was to take place. The failure of scrutineers to be in attendance at polling places is not the concern of the polling officials unless the polling officers have misled the scrutineers.

THE 22 BALLOT PAPERS FROM BALLOT BOX 9.

Whilst there was apparently an oversight by someone in the counting room, the scrutineers clearly did their job and the 22 votes were counted. So clearly the result of the election was not affected.

FAILURE TO SECURE BALLOT BOXES.

Whilst the Returning Officer did not really keep a proper track of the ballot boxes with his two renumberings of the boxes, there was no real evidence apart from the mystery of box 25 which I refer to later, that ballot boxes were tampered with or their security jeopardised in any way. However, I must repeat that polling officials should closely follow the administrative directions concerning the handling of the keys to ballot boxes and the security of ballot boxes to ensure the voter does not have any doubts as to the security of the poll.

KILGU POLLING PLACE.

The polling officials did not attend at Kilgu. The excuse that 4 helicopter attempts had been made to get the polling team into Kilgu is not sufficient. Officials must be prepared to walk in to polling places and there was ample time during the polling period to walk into Kilgu and take the poll before the close of polling. This omission of polling officials could have affected the result of the election if the difference between the leading candidates’ polls had been in the region of the number of eligible voters at Kilgu. However, according to the only authoritative figures given by the Provincial member for the area, there may have been only up to 25 eligible voters.

BALLOT BOX 25.

I find the lack of proper tally room records over ballot box 25 to be the most serious matter in this case. I am not satisfied as to the appearance of box 25 and I feel it should be discounted completely from the results of the election. Neither the presiding officer records for team 3 nor the tally sheet could show where box 25 with its 933 votes came from. I find the Returning Officer’s failure to keep a consistent record of the numbering of ballot boxes, the ballot box numbers were changed 2 times, and the fact that the presiding officer’s return for team 3 did not tally up at all with the counts shown on the tally sheet to be serious omissions which could have affected the result of the election.

If I do a balancing of the figures shown in the presiding officer’s return, the figures shown in the petitioner’s scrutineers own notes taken in the tally room, and the figures from the ‘official’ though ‘uncertified’ tally sheet for ballot boxes 14, 15, 16, 17, 18 and 25, I still get a discrepancy of at least about 20 and anyway there is no evidence or authority which really allows me to do this balancing Act.

There must be satisfactory records from polling officials to limk up vote numbers with ballot boxes and tally sheets to satisfy any doubts or queries citizens may have. In the case of team 3 from Tambul-Nebilyer, such records do not exist.

CONCLUSION.

I have not found any illegal practices or that bribery or undue influence was exercised by Thomas Negints which could void the election.

I have not found that there were illegal practices or undue influence by any person which were likely to have affected the results of the election.

I have however, found errors or omissions by officers of the Electoral Commission which could have affected the results of an election, namely the failure to attend at Kilgu and the failure to explain box 25. However, in this election the winning margin was 1626 votes and the errors and omissions at Kilgu and with box 25 can only allow me to discount 25 and 930 votes respectively a total of 955 votes.

I must act judicially and be aware of the serious step, it is to declare an election void. The error on the part of an officer is significant in the final analysis only if it is proved that it could have actually affected the result of the election. In the circumstances because of the winning margin, I must find that the result of the election was not affected nor could have actually been affected and therefore, I dismiss the petition.

ON COSTS

I order that the petitioner pay the respondent Thomas Negints costs on this petition and note that the K200 paid into court is held by the court as security towards these costs.

In view of the serious omissions and defaults of the officers of the Electoral Commission, I make no order as to the costs of the Electoral Commission.

Solicitor for the Petitioner: K. Kara

Counsel: K. Kara

Solicitor for the Respondent: P. Donigi

Counsel: M. Cholai

Solicitor for the Electoral Commissioner: State Solicitor

Counsel: L. Au